In United States v. Hong, --- F.3d ---, No. 17-50011 (9th Cir. 2019), the defendant was convicted of health care fraud and related offenses based on a scheme to bill Medicare for physical therapy
treatments that had not been provided.
The defendant raised a host of issues (see the 9th Cir. summary on those), which the court rejected. BUT he did prevail on his identity theft argument.
The Ninth Circuit agreed that the defendant did not “use” the patients’
identities within the meaning of § 1028A, where neither he nor the physical therapists attempted to pass
themselves off as the patients. In other words, "use" is this context is essentially pretending to be the person, not just using the identity to bill Medicare.
Also, for us appellate people: "The government contends that because
Hong’s argument has shifted on appeal, we should review
for plain error. But Hong’s “basic claim remains the
same”—that his communications with co-schemers were not
obstruction—so we review for abuse of discretion the district
court’s application of the guidelines and for clear error its factual findings. See Vallejos, 742 F.3d at 905; see also
United States v. Wahid, 614 F.3d 1009, 1016 (9th Cir. 2010)
(declining to apply a heightened standard of review where
defendant’s arguments against the guidelines calculation
were based on different enhancements in district court and
on appeal).
